What to do in case of a breach of habitability in a rental?

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What to do in case of a breach of habitability in a rental?

The management company recently had a used furnace installed in my apartment. The person that did the work was not certified. Upon installing the furnace he substantially damaged the asbestos insulation and even removed several feet of it, improperly, and left it sitting in my basement. I had a certified asbestos contractor inspect the site and he was shocked. He sent a bid to management and I have heard nothing. It has been a week and I have been living with asbestos contamination and no working furnace. Should I hire a lawyer? Should I still pay rent? What can I expect if I hire a lawyer?

Asked on October 27, 2010 under Real Estate Law, Ohio

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

For health reasons alone, you should not stay in that apartment.  In every lease there is an implied warranty of habitability which means the landlord must maintain the premises in a habitable condition by complying with local and state housing codes.  The asbestos insulation damage and no working furnace  would each constitute a breach of the impled warranty of habitability.  You could either move out and terminate your obligation to pay rent for the balance of the term of the lease or if you decide to stay, you could withhold rent and defend against eviction. 

You could sue the landlord for breach of the implied warranty of habitability.  Your lawsuit should also include a separate cause of action (claim) for negligence for the improper removal and disposal of asbestos which exposed you to asbestos.   Your staying in the apartment could provide the landlord with the defense of assumption of the risk to your negligence claim.  Assumption of the risk means that you recognized and understood the danger and voluntarily chose to encounter it.

It would be advisable to speak with a landlord/tenant attorney; preferably an attorney who represents tenants.


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